Emoluments attachment order vs Garnishee order.
Once judgment is granted in your favor for a debt owed to you or your business, you may feel that you have come to the end of a long and frustrating battle to claim what is rightfully yours. Unfortunately, this may not be the end of the road just yet. The fact that judgment has been granted in your favor does not mean that the money owed to you automatically appears in your bank account the following morning. Often, judgment debtors are reluctant to pay up, even once judgment has been granted. For this reason, the judgment debt needs to be executed upon. This article shall discuss two avenues that you may pursue to recover your debt, namely: Emoluments attachment orders and Garnishee orders. It is important to note that although these two procedures may be useful tools to enforce a judgment, there are other remedies available to you that fall outside the scope of this article. A clear distinction is drawn in the Magistrate’s Court Act (‘the Act”) between an Emoluments attachment order and a Garnishee order.[1] Emoluments attachment orders are only provided for in the Magistrate’s court and not in the High Court. Although no mention is made of Garnishee orders in the uniform rules of the High Court, attachment of money owed to the judgment debtor is permitted, but only as a part of the execution process and only once an attempt has already been made to attach movable property in order to satisfy the judgment, however, insufficient movable property was found.[2] However, for the purposes of this article, the procedures applicable to the Magistrate’s court will only be discussed.
Emoluments attachment order
An Emoluments attachment order has the effect of setting aside a portion of the judgment debtor’s salary, wages, allowances or any other form of remuneration due to the judgment debtor (“emoluments”), which becomes payable to the judgment creditor.[3] In essence, Emoluments attachments orders “attach the emoluments at present or in future owing or accruing to the judgment debtor by or from his/her employer (in this section called the garnishee), to the amount necessary to cover the judgment and costs of the attachment”.[4] The garnishee/employer will be obliged to pay the judgment creditor amounts out of the judgment debtors emoluments in accordance with the Emoluments attachment order from the end of the month following the month in which the Emoluments attachment order is served on the garnishee/employer.[5] The Emoluments attachment order will stipulate the installments payable, which shall be payable until the judgment debts and costs have been paid in full.[6] The garnishee/employer will be entitled to recover from the judgment creditor a 5% commission of all amounts deducted from the judgment debtor’s emoluments.[7]
Previously, the Act did not require “judicial oversight” when issuing Emoluments attachment orders. However, the Constitutional Court case of University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services has since changed that position, stating that the “constitutional defect [was] the absence of words providing for judicial oversight”.[8] Judicial oversight is defined as “denoting a decision by a court, following a consideration of relevant facts”.[9] “Judicial oversight permits a magistrate to consider all the relevant circumstances of a case to determine whether there is good cause to order execution”.[10]
In addition, the Constitutional Court confirmed section 90(2)(k)(vi)(bb) of the National Credit Act 34 of 2005, which states that “a provision in a credit agreement is unlawful if the consumer expresses consent to the jurisdiction of any court seated outside the area of jurisdiction of a court having concurrent jurisdiction and in which the consumer resides or works or where the goods in question (if any) are ordinarily kept”.[11] Accordingly, there must be some jurisdictional fact present, being residence, employment or movable assets falling within the area of jurisdiction of the court called upon to grant the Emoluments attachment order, in order for such an order to be lawfully issued. The court therefore closed the door to so called “forum shopping” by judgment creditors, which is the practice of creditors or their legal representatives approaching a court which has no legally relevant factors (jurisdictional factors referred to above) linking such a court to the judgment debtor to grant an Emoluments attachment orders.
On a practical level, “an Emoluments attachment order may only be issued if the court has so authorized, after satisfying itself that it is just and equitable that the Emoluments attachment order be issued and that the amount is appropriate, whether on application to the court or otherwise”.[12] This application may be brought without notice to the judgment debtor or garnishee/employer and must be supported by an affidavit, outlining “the size of the debt, the circumstances in which the debt arose and the availability of alternatives to recover the debt”, among other factors.[13] Once the Emoluments attachment order has been authorized, a further application authorizing the issue of an Emoluments attachment order must be brought using a Notice of Intention to issue an Emoluments attachment order (Form 38A).[14] The application to issue the Emoluments attachment order must be served on the judgment debtor and the garnishee/employer.[15] The Emoluments attachment order shall be issued in accordance with Form 38 and shall contain sufficient information to enable the garnishee/employer to identify the judgment debtor, such as an ID number.[16] The Emoluments attachment order must also be served on the garnishee/employer by the sheriff and the judgment debtor if he/she was absent during the authorization.[17]
Garnishee order
A Garnishee order deals with the attachment of debts, “which includes any income from whatever source other than emoluments”.[18] It is clear that a judgment debtors emoluments cannot be attached by utilizing a Garnishee order.[19] A judgment creditor may make an ex parte application to court in order to attach “any debt at present or in future owing or accruing to the judgment debtor by or from any other person…to an amount sufficient to satisfy the judgment and the costs of the proceedings for attachment”.[20] An ex parte application in the context of a Garnishee order means that no notice is given by the judgment creditor to the judgment debtor or the third party/garnishee at this stage, as this may lead to the third party/garnishee and judgment debtor entering into an arrangement in order to avoid making payment to the judgment creditor. [21] Therefore, judgment creditor is the only party before the court.
The court may make an order known as a Garnishee order against a third party to the proceedings (“the garnishee”) to pay the judgment creditor directly, so much of the debt as may be sufficient to satisfy the judgment and costs.[22] On a basic level, this process involves a third party/garnishee paying the judgment creditor directly instead of paying the judgment debtor monies owed to him. For example, in the event that the judgment debtor has recently sold property and to a third party/garnishee, the Garnishee order will order the third party/garnishee to make payment directly to the judgment creditor and not to the judgment debtor who he bought the property from.
An affidavit must be attached to the application for a Garnishee order, confirming under oath that:
- a court has granted judgment to the judgment creditor;
- The judgment remains unsatisfied;
- The third party/garnishee resides, carries on business or is employer within the district of the court; and
- That there is a debt at present, in future owing or accruing from the garnishee to the judgment debtor and the amount thereof.[23]
In addition to the affidavit, a certified copy of the judgment must accompany the application.[24] Once the Garnishee order has been granted, the order shall be served by the sheriff upon the third party/garnishee and the judgment debtor.[25] In the event that the Garnishee order has been granted and the court is shown by the judgment debtor that he/she is left with insufficient means to maintain him/herself or his/her dependents, the court will set aside or amend the Garnishee order in such a way that the order will exclude the portion of the debt that the judgment debtor will require to maintain him/herself and his/her dependents.[26]
Conclusion
Emoluments attachment orders and Garnishee orders are just two of the avenues available to you when enforcing a judgment granted in your favor. The brief discussion above differentiates between these two procedures and outlines some key aspects. However, the facts of your specific case shall guide you in your decision as to how you will effectively enforce your judgment.
[1] Jones & Buckle “The Civil Practice of the Magistrate’s Courts in South Africa” 10th edition, Volume 1: Van Loggerenberg Page 443.
[2] Section 45(12) of the Uniform rules of court.
[3]Jones & Buckle “The Civil Practice of the Magistrate’s Courts in South Africa” 10th edition, Volume 1: Van Loggerenberg Page 443.
[4] Section 65(J)(1)(b)(i) of the Magistrate’s Court Act 32 of 1944 (“the Act”).
[5] Section 65J(4)(a) of the Act.
[6] Section 65J(1)(b)(ii) of the Act.
[7] Section 65J(10)(a) of the Act.
[8] University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services 2016 (6) SA 596 (CC) para 206.
[9] University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services 2016 (6) SA 596 (CC) para 74.
[10] University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services 2016 (6) SA 596 (CC) para 74.
[11] University of Stellenbosch Legal Aid Clinic v Minister of Justice and Correctional Services 2016 (6) SA 596 (CC) para 155.
[12] Section 65J(2) of the Act.
[13] Jones & Buckle “The Civil Practice of the Magistrate’s Courts in South Africa” 10th edition, Volume 1: Van Loggerenberg Page 444E; Section 55(A) of the Act.
[14] Rule 46(1) of the Magistrate’s Rules of Court.
[15] Section 65(J)(2A) of the Act.
[16] Rule 46(2) of the Magistrate’s Rules of Court.
[17] Section 65(J)(3)(c) of the Act.
[18] Jones & Buckle “The Civil Practice of the Magistrate’s Courts in South Africa” 10th edition, Volume 1: Van Loggerenberg Page 443.
[19] Minter NO v Maker 2001 (3) SA 175 (W).
[20] Section 72(1) of the Act.
[21] C Theophilopoulos “Fundamental Principles of Civil Procedure” Third edition, Pg 142.
[22] Section 72(1) of the Act.
[23] Rule 47(1) of the Magistrate’s Rules of Court.
[24] Rule 47(2) of the Magistrate’s Rules of Court.
[25] Rule 47(7) of the Magistrate’s Rules of Court.
[26] Section 72(2) of the Act.
